Brian, I. Free Speech. I completely disagree with your statement that: "When a trademark owner pays a premium to defensively register a domain name exactly matching its trademark in a Sunrise process this does not prevent free expression; it does however protect consumers by preventing potential misrepresentation under that particular string.² Your position imposes a qualitative aspect to speech and presumes that because you see other avenues available that must mean that speech is not impinged. It also ignores that the protection extends to not only w hat is said but HOW it is said. The correct analysis is the following: 1. Is speech curtailed in any manner 2. If yes then assess A, The reason for the restriction; B,. The identity of WHO is regulating the speech; and, C. The availability of lesser intrusive means of achieving the reason (goal) while minimizing restrictions of speech. Restricting speech for commercial reasons is subject to a very high standard. I see no basis, for example, to application of the private property/shopping center type cases. Speech comes in all flavors and one must not qualitatively influence the analysis simply because you agree or disagree with what is being said and HOW it is being said. II. Balancing the costs. Also, the removal is not limited to ONE domain. It is extended to all sunrise extensions so at last could could involve over 1,500 instances. There is good reason to explore alternatives that focus on curative rights and not right by prescription. For example, Retain the UDRP approach Inclusion of the mark within the TMCH is conclusive evidence as to the 1st Element The notification process would eliminate the issue of knowledge The cost of a UDRP complaint is less than $5,000, including attorney time and the 3-member panel fees; The vast majority of all UDRPs are defaults III. Less Intrusive Methods. Further, I would like to see the impact of the TMCH notice process in terms of the number of notices sent and the number of domain registrations subsequently gently abandoned following notice. If a significant abandonment rate exists it would show a lesser intrusive means of accomplishing the result instead of simply awarding a monopoly on domain names to trademark holders. Regards, Paul On 4/21/17, 9:56 AM, "Michael Graham (ELCA)" <gnso-rpm-wg-bounces@icann.org on behalf of migraham@expedia.com> wrote:
+1
-----Original Message----- From: gnso-rpm-wg-bounces@icann.org [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of icannlists Sent: Thursday, April 20, 2017 4:46 AM To: Beckham, Brian <brian.beckham@wipo.int> Cc: gnso-rpm-wg@icann.org Subject: Re: [gnso-rpm-wg] Proposal for the elimination of Sunrise Period
Agree Brian and J Scott!
Sent from my iPhone
On Apr 20, 2017, at 5:40 AM, Beckham, Brian <brian.beckham@wipo.int<mailto:brian.beckham@wipo.int>> wrote:
To add support to J Scott's comment:
When a trademark owner pays a premium to defensively register a domain name exactly matching its trademark in a Sunrise process this does not prevent free expression; it does however protect consumers by preventing potential misrepresentation under that particular string.
In weighing the respective costs and benefits, it is difficult to see how the current system whereby one domain name is removed from circulation to prevent consumer harm / trademark abuse should be eliminated because it may prevent speech from that one particular outlet in a universe of virtually countless other available outlets.
In any event, Jeremy, this group would no doubt find any examples you may be aware of, of actual speech chilling (particularly speech that could not be undertaken elsewhere) because of a Sunrise registration, quite useful.
Finally, the claimed "cost savings" formula below is far too simplistic; the harm that can occur e.g., through one domain name-occasioned phishing campaign alone (in the time it takes to apply the cure) could upend that entire equation many times over.
Brian
From: gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org> [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of J. Scott Evans via gnso-rpm-wg Sent: Thursday, April 20, 2017 1:51 AM To: Paul Tattersfield Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] Proposal for the elimination of Sunrise Period
We keep hearing all these outlandish claims of the poor folks cheated out of an opportunity to express themselves or start a new business, but no real proof. I hear all the same arguments I have heard since 2009 and from the same groups with no proof. I also see no new voices claiming any of this alleged harm. What I see is a group of stakeholders with an anti-IP agenda making the same old arguments hoping to trim back consensus solutions where compromises based on these arguments have already been made.
J. Scott
Sent from my iPhone
On Apr 19, 2017, at 4:33 PM, Paul Tattersfield <gpmgroup@gmail.com<mailto:gpmgroup@gmail.com>> wrote: I'm not sure I agree. The Claims Notices are likely to have a far bigger impact on people not registering domains especially those who are not professional registrants and have not seen a claims notice before.
No Claims Notices should be issued without a substantive review of the underlying goods and services.
The idea that anyone can buy a piece of paper without any real goods or services to protect and can then use that piece of paper to discourage others from building real world businesses simply because some jurisdictions give out those pieces of paper out like confetti under the pretext of ideas they 'might want to do in the future' should be deeply frowned upon by anyone participating in ICANN. Paul
On Wed, Apr 19, 2017 at 7:56 PM, Jeremy Malcolm <jmalcolm@eff.org<mailto:jmalcolm@eff.org>> wrote:
Open questions 7 and 8 illustrate how the protections provided to trademark holders through the TMCH have been applied too broadly by the provider, opening the door for gaming and abuse by trademark holders, and chilling of speech by affected third parties. This proposal also bears on question 16 (Does the scope of the TMCH and the protections mechanisms which flow from it reflect the appropriate balance between the rights of trademark holders and the rights of non-trademark registrants?).
It has been seen that the TMCH has facilitated trademark owners claiming exclusive rights in domain names that they don't exist in domestic trademark law, such as words incorporated into design marks. Open question 10, rather than addressing the potential for abuse, actually suggests a measure that would allow even more non-trademarked terms to be locked up by priority claimants.
As a measure to address these problems, we propose eliminating the TMCH's Sunrise Registration service altogether. Although we also have concerns about its Trademark Claims service and will likely propose its elimination separately at a later date, the Sunrise Registration service is the most urgent to eliminate, because it creates an absolute bar to third parties registering domains that a Sunrise registrant has already claimed, whereas the Trademark Claims service results in a warning to third parties but does not absolutely preclude them from registering.
We believe that the elimination of Sunrise Registrations would be the simplest way to address the problems of gaming and abuse that have been observed by working group members, not only in respect of design marks and geographical words, but also the misuse of dubious trademarks over common dictionary words such as "the", "hotel", "luxury", "smart", "one", "love", and "flower" to lock up domains unrelated to the original trademark.
If the Sunrise Registration system were widely used by trademark holders, then it might be claimed that its elimination was disproportionate-but as we have seen, this is not the case. There have been only about 130 Sunrise Registrations per new domain. Such a small number of claims could be more simply and efficiently handled simply by allowing those claimants to resort to curative mechanisms such as the UDRP in the event that a third-party registrant beats them to registering a domain over which they might have made a claim.
The benefits of the elimination of Sunrise Registrations would be:
* An overall cost saving.
* Streamlining of the public availability of domains in new registries.
* Elimination of the potential for gaming and abuse by putative trademark holders who claim rights over domain names that do not correspond to their domestic trademark rights.
The costs would be:
* Some trademark holders would be required to resort to curative proceedings if domain names over which they have a legitimate claim are registered by third parties.
--
Jeremy Malcolm
Senior Global Policy Analyst
Electronic Frontier Foundation
https://eff.org<https://na01.safelinks.protection.outlook.com/?url=https%3 A%2F%2Feff.org&data=02%7C01%7C%7C0e18d5b07aea47943d4408d4877c75c3%7Cfa7b1b 5a7b34438794aed2c178decee1%7C0%7C0%7C636282416004172724&sdata=LCpvg6fU%2FX kpw1fmAH8KzPJDWABttoqafNYeotxdCiQ%3D&reserved=0>
jmalcolm@eff.org<mailto:jmalcolm@eff.org>
Tel: 415.436.9333 ext 161<tel:(415)%20436-9333>
:: Defending Your Rights in the Digital World ::
Public key: https://www.eff.org/files/2016/11/27/key_jmalcolm.txt<https://na01.safelin ks.protection.outlook.com/?url=https%3A%2F%2Fwww.eff.org%2Ffiles%2F2016%2F 11%2F27%2Fkey_jmalcolm.txt&data=02%7C01%7C%7C0e18d5b07aea47943d4408d4877c7 5c3%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C636282416004172724&sdata= L5mf1H52yrjTzEUH1k0ZD7QleNH6oCdZhT3B7%2FDCW1Y%3D&reserved=0>
PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg<https://na01.safelinks.p rotection.outlook.com/?url=https%3A%2F%2Fmm.icann.org%2Fmailman%2Flistinfo %2Fgnso-rpm-wg&data=02%7C01%7C%7C0e18d5b07aea47943d4408d4877c75c3%7Cfa7b1b 5a7b34438794aed2c178decee1%7C0%7C0%7C636282416004182733&sdata=fZ88VMsRjujG itQovRkGfOctUusd1sufOBNGSw97Kn8%3D&reserved=0>
_______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmm.icann. org%2Fmailman%2Flistinfo%2Fgnso-rpm-wg&data=02%7C01%7C%7C0e18d5b07aea47943 d4408d4877c75c3%7Cfa7b1b5a7b34438794aed2c178decee1%7C0%7C0%7C6362824160041 82733&sdata=fZ88VMsRjujGitQovRkGfOctUusd1sufOBNGSw97Kn8%3D&reserved=0 World IP Day 2017 - Join the conversation Web: www.wipo.int/ipday<http://www.wipo.int/ipday> Facebook: www.facebook.com/worldipday<http://www.facebook.com/worldipday>
World Intellectual Property Organization Disclaimer: This electronic message may contain privileged, confidential and copyright protected information. If you have received this e-mail by mistake, please immediately notify the sender and delete this e-mail and all its attachments. Please ensure all e-mail attachments are scanned for viruses prior to opening or using. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
________________________________ The contents of this message may be privileged and confidential. If this message has been received in error, please delete it without reading it. Your receipt of this message is not intended to waive any applicable privilege. Please do not disseminate this message without the permission of the author. Any tax advice contained in this email was not intended to be used, and cannot be used, by you (or any other taxpayer) to avoid penalties under applicable tax laws and regulations. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg